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Shantilal Bhailal Gandhi Vs. Mahendra Naginlal Desai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1974)15GLR303
AppellantShantilal Bhailal Gandhi
RespondentMahendra Naginlal Desai
Cases ReferredMotibhai Ramabhai v. Panachand Mohanlal Shah
Excerpt:
.....for fixing the standard rent, is not appealable. the procedure prescribed in the ahmedabad small cause court rules would, therefore, clearly be applicable in respect of suit and proceedings falling within any one of the three categories described in clauses (1), (2) and (3) of rule 5. so also by reason of the mandate of the state government expressed in rule 7, the procedure prescribed in the ahmedabad small cause court rules would apply in respect of miscellaneous applications such as applications for fixing standard rent. 18. revision petition is allowed and the judgment and decree passed by the trial court as well as by the appellate court are set aside and the matter is remanded to the trial court with a direction to re-take civil miscellaneous application no......that his main contention is that the procedure prescribed has not been followed. such a standard rent application, which is a miscellaneous application, could not have been decided on affidavits. that being the position, mr. shah submitted that the decision cannot be sustained. he has invited my attention to the relevant rules framed by the state government in exercise of its power under section 49(2) of the bombay rents, hotel and lodging house rates control act, 1947 (which will be hereinafter referred to as 'the bombay rent act'). those rules are the bombay rents, hotel and lodging house rates control rules, 1948 (which will be hereinafter referred to as 'the bombay rent act rules'). in rule 2(b), 'miscellaneous application' has been defined as under:'miscellaneous application'.....
Judgment:

J.M. Sheth, J.

1. This is a revision petition filed by the petitioner (tenant) against the opponent (landlord) against the order passed by the learned Judge of the Small Causes Court at Ahmedabad, in Miscellaneous Application No. 918 of 1964, filed by the petitioner against the opponent for determination of the standard rent in respect of the premises leased to him by the opponent. The learned trial Judge decided the matter on affidavits, The impugned order reads:

Heard Mr. H.B. Desai and Mrs. J.H. Shah. Read the affidavits. Standard rent is fixed at Rs. 75/- per month. Parties to bear their costs.

2. It was the petitioner's contention that rent agreed between the parties was excessive and it should be fixed at Rs. 35/- per month. It was the opponent's contention that he had let out the suit premises to one Navinchandra B. Desai on 27th May, 1954 at a concessional rate of Rs. 61/- per month. When that tenant vacated, he let out the suit premises to one Harihar Shukla on a monthly rent of Rs. 75/- per month. That tenant did not actually occupy the suit premises. He handedover possession of the leased premises on 15th July, 1959, and it was thereafter that the petitioner had taken on lease that premises.

3. Being dissatisfied with the order passed by the trial Court, the tenant filed Civil Revision Application No. 53 of 1966, and it was heard by the Appellate Bench of the Court of Small Causes at Ahmedabad, and the aforesaid order has been confirmed by it. The petitioner-tenant has, therefore, preferred the present revision application to this Court.

4. Mr. B.R. Shah, appearing for the petitioner-tenant, has stated that his main contention is that the procedure prescribed has not been followed. Such a standard rent application, which is a miscellaneous application, could not have been decided on affidavits. That being the position, Mr. Shah submitted that the decision cannot be sustained. He has invited my attention to the relevant rules framed by the State Government in exercise of its power under Section 49(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (which will be hereinafter referred to as 'the Bombay Rent Act'). Those rules are the Bombay Rents, Hotel and Lodging House Rates Control Rules, 1948 (which will be hereinafter referred to as 'the Bombay Rent Act Rules'). In Rule 2(b), 'miscellaneous application' has been defined as under:

'Miscellaneous application' means an application for fixing the standard rent, except where the said relief is claimed in a pending suit or proceeding, an application for determining the permitted increases and application by a tenant for reinstatement....

In the instant case, we are concerned with an application made by the petitioner-tenant for fixing the standard rent, as contemplated by Section 11 of the Bombay Rent Act. It is, therefore, undoubtedly a miscellaneous application.

5. Chapter IV of the Bombay Rent Act Rules deals with procedure to be followed by the Court of Small Causes, Bombay, for suits, proceedings, appeals, etc. Rule 5 reads:

Procedure for suits, the value of the subject-matter of which does not exceed Rs. 3,000/- and for proceedings for execution of-decrees and orders passed therein and for distress warrants. In such of the following suits and proceedings as are cognizable by the Court of Small Causes, Bombay, on the date of the coming into force of these Rules, namely:

(1) Suits relating to the recovery of rents or charges for boarding, lodging or other service provided in a hotel or a lodging house when the amount or value of the subject-matter does not exceed Rs. 3,000/-.

(2) proceedings under Chapters VII and VIII of the Presidency Small Cause Courts Act, 1882, and

(3) proceedings for execution of any decree or order passed in any such suit or proceeding the Court of Small Causes, Bombay, shall follow the practice and procedure provided for the time being (a) in the said Act, except Chapter VI thereof, and (b) in the rules made under Section 9 of the said Act.

Admittedly, if Rule 5 is to be read alone, the present miscellaneous application will not fall within Sub-rules (1), (2) or (3) of Rule 5 of the Bombay Rent Act Rules.

6. Rule 7 of the Bombay Rent Act Rules, which is material for our purposes, reads:

Procedure in applications for fixing standard rent, etc.- (1) In miscellaneous application the Court of Small Causes, Bombay, shall follow, as far as may be and with the necessary modifications, the practice and procedure applicable to suits referred to in Rule 5 as if such applications were suits for sums not exceeding Rs. 1000/-.

A mere glance at this rule will indicate that in such miscellaneous applications, the Court of Small Causes at Ahmedabad has to follow, as far as may be and with the necessary modifications, the practice and procedure applicable to suits referred to in Rule 5 as if such applications were suits for sums not exceeding Rs. 1,000/-. A deeming fiction is thus introduced by the rule-making authority that these applications will be deemed to be suits for sums not exceeding Rs. 1,000/- for determining the procedure to be followed. Sub-rule (1) of Rule 5 applies to suits relating to the categories referred to therein when the amount or value of the subject-matter does not exceed Rs. 3,000/-. Miscellaneous application with which we are concerned is to be deemed to be a suit for a sum not exceeding Rs. 1,000/-. It would, therefore, mean that the amount or value of the subject-matter does not exceed Rs. 3,000/-. Reading these two rules together, there is no escape from the conclusion that in such applications, the procedure that is to be followed is the procedure which will have to be followed in respect of suits specified in Sub-rule (1) of Rule 5.

7. It will not be out of place, if in this context, I refer to Rule 6 of the Bombay Rent Act Rules, which deals with Affidavits in distress warrant applications. It reads:

Every application for a distress warrant under Chapter VIII of the Presidency Small Cause Courts Act, 1882, shall be accompanied also by an affidavit of the applicant or his duly constituted agent stating that the amount claimed is not in excess of the rent recoverable under the Act.

It does not appear that there is any such provision made for filing such affidavits in such miscellaneous applications.

8. Rule 8 of the Bombay Rent Act Rules deals with procedure for other suits. It reads:

In suits and proceedings other than those referred to in Rules 5 and 7, the Court of Small Causes, Bombay, shall, as far as may be and with the necessary modifications follow the procedure prescribed for a Court of first instance by the Code including Order XXXVII as modified in its application to the State of Bombay....

In the instant case, in view of the deeming fiction introduced in Rule 7, it is evident that the miscellaneous application in question is to be treated as a suit for a sum not exceeding Rs. 1,000/- for determining the procedure to be followed. Rule 8 will have, therefore, no application. Mr. Shah, appearing for the petitioner, has also conceded to that position.

9. We are not concerned with the rules which fall in Chapter IV-A of the Bombay Rent Act Rules, as we are not concerned with regard to the procedure to be followed by the Court of Small Causes established under the Provincial Small Cause Courts Act, 1887. We are concerned with the procedure to be followed by the Court of Small Causes established under the Presidency Small Cause Courts Act, 1882.

10. The High Court of Gujarat, in exercise of the powers conferred by Section 9 of the Presidency Small Cause Courts Act, 1882, has framed the Rules regarding the procedure to be followed and the practice to be observed by the Ahmedabad Small Causes Court. Those rules are known as 'Ahmedabad Small Cause Court Rules.' Rule 38 of the said Rules is material for our purposes. It reads:

38(1) In cases to which Section 38 of the Act applies or in which an appeal is allowed on facts under any enactment for the time being in force, the Judge, as the examination of each witness proceeds, shall either (i) make in his own hand or cause to be made at his dictation a memorandum of the substance of what the witness deposes, or (ii) cause the evidence of the witness to be taken down in writing in his presence and under his personal superintendence as far as possible not in the form of question and answer, but in the narrative form and the Judge shall, if necessary, correct the same.

(2) Such memorandum of evidence taken down in writing shall be signed by the Judge and shall form part of the record.

Mr. Shah has contended that reading the relevant rules of the Bombay Rent Act Rules and this Rule 38, the procedure that is required to be followed in such miscellaneous applications, is the procedure referred to in this Rule 38. Such matters cannot be decided on mere affidavits.

11. Mr. J.V. Desai, appearing for the opponent-landlord has urged that this Rule 38 could not have any application as Section 38 of the Presidency Small Cause Courts Act, 1882, to which I will make reference presently, will have no application and further, the impugned order is not appealable under provisions of the Bombay Rent Act.

12. Section 29 of the Bombay Rent Act clearly indicates that such order made upon an application for fixing the standard rent, is not appealable. Only revision application lies against that order.

13. Section 38 of the Presidency Small Cause Courts Act, which falls in Chapter VI, deals with 'New Trial of contested cases.' It reads:

Where a suit has been contested, the Small Cause Court may, on the application of either party, made within eight days from the date of the decree or order in the suit (not being a decree passed under Section 522 of the Code of Civil Procedure) (XIV of 1892), order a new trial to be held, or alter, set aside or reverse the decree or order, upon such terms as it think;, reasonable, and may, in the meantime, stay j the proceedings.

It is evident that if one had merely to read this section, the present proceeding cannot be said to be a proceeding covered by that section.

14. Material part of Section 28 of the Bombay Rent Act reads:

(1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction.

(a) in the City of Ahmedabad, the Court of small Causes of Ahmedabad... shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of Sub-section (2) no other Court shall have: jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question.

'This section invests the exclusive jurisdiction to the Court of Small Causes of Ahmedabad in the city of Ahmedabad to decide any application under this Act which would cover the decision of such a standard rent application which is under Section 11 of the Bombay Rent Act.

15. Mr. Desai, appearing for the opponent, has contended that in view of the fact that Section 38 of the Presidency Small Cause Courts Act, 1882, cannot have any application to such a proceeding and furthermore, the impugned order is not an appealable order, aforesaid Rule 38 of the Ahmedabad Small Cause Court Rules cannot have any application. It was, therefore, contended by him that one has to fall back to Sub-rule (2) of Rule 1 of the Ahmedabad Small Cause Court Rules. It reads:

(2) The portions of the Code of Civil Procedure, Act V of 1908, as modified upto 4th November, 1961 in its application to the State of Gujarat specified in the last column of the schedule thereto annexed shall, subject to the additions, alterations and modifications in the second column of such schedule, extend and shall be applied to the Small Cause Court and the procedure followed in the Court in all suits cognizable by it except where such procedure is inconsistent with the procedure by any specific provisions of the Presidency Small Cause Courts Act, 1882, or with these Rules.

He has invited my attention to the Schedule annexed to it which indicated that the provisions of Order 19 of the Code of Civil Procedure regarding affidavits were applicable. In my opinion, that will not, in any manner, indicate that such standard applications can be decided on affidavits. These rules are controlled by the Bombay Rent Act Rules. The procedure referred to therein has got to be followed in such proceedings.

16. Mr. Shah has invited my attention to the decision of a Division Bench of this Court in Motibhai Ramabhai v. Panachand Mohanlal Shah 13 Gujarat Law Reporter 508. It is true that the Division Bench of this Court had to deal with a case regarding the procedure to be followed in a suit filed by the landlord for recovery of possession of premises let to -the tenant. For deciding that question, the Division Bench had considered the relevant rules and has made certain observations which are, no doubt in the nature of obiter dicta which would assist me in deciding the question that is posed before me. At page 510, Section 31 of the Bombay Rent Act has been referred to. It reads:

31. The Courts specified in Sections 28 and 29 shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders made by them.

As said earlier, Section 49 of the Bombay Rent Act empowers the State Government to frame rules in regard to the procedure to be followed in trying or hearing suits, proceedings (including proceedings for execution of decrees and distress warrants), applications, appeals and execution of orders. In exercise of that power, Bombay Rent Act Rules have been framed by the State Government, which prescribe the procedure, to which reference has already been made by me earlier. It is, therefore, evident that it is these rules which will govern the procedure to be followed in such proceedings.

17. The Division Bench, in the aforesaid decision, has at pages 510 and 511, observed:

The 'prescribed procedure' would be procedure prescribed by Rules made under the Rent Act and, therefore, we must turn to Section 49 which confers rule-making power on the State Government. Section 49 Sub-section (1) provides that the State Government may, by notification in the Official Gazette and subject to the condition of previous publication, make rules for the purpose of giving effect to the provisions of the Rent Act and Sub-section (2) Clause (iii) says that in particular, and without prejudice to the generality of the foregoing Part, the rules made by the State Government may provide for the procedure to be followed in trying or hearing suits, proceedings (including proceedings for execution of decrees and distress warrants), applications, appeals and execution of orders. The State Government in exercise of the power conferred under Section 49, Sub-section (1) as also Section 49, Sub-section (2), Clause (Hi) made the Bombay Rents, Hotel and Lodging House Rates Control Rules, 1948 (hereinafter referred to as the 'Rent Act Rules'). Chapters IV, IV-A, V, VI-A and VII of the Rent Act Rules prescribe the procedure to be followed by the Courts specified in Sections 28 and 29 in trying and hearing suits, proceedings (including proceedings for execution of decrees and distress warrants), applications; appeals and execution of orders. We are concerned in these petitions only with the procedure required to be followed by the Court of Small Causes at Ahmedabad and we may, therefore, refer only to Chapters IV and VI-A. Chapter VI-A consists of only one Rule, namely, Rule 15-A and this rule provides that notwithstanding anything contained in Chapter V and Rule 15, in the City of Ahmedabad the provisions of Chapter IV and Rule 14 shall mutatis mutandis apply to suits, proceeding, applications, appeals and execution of orders under Sections 28 and 29 of the Rent Act, The procedure to be followed by the Court of Small Causes at Ahmedabad in trying and hearing suits, proceedings, applications, appeals and execution of orders under Sections 28 and 29 would, therefore, be governed by the provisions of Chapter IV and Rule 14. Chapter IV consists of several Rules but we need refer only to Rules 5, 7 and 8, as those are the only Rules relevant to the question in controversy between the parties.

At page 512, after referring to those Rules, it is observed:

It will be seen that so far as suits and proceedings referred to in Clauses (1), (2) and (3) of Rule 5 are concerned. Rule 5 makes applicable the practice and procedure provided for the time being in the Presidency Small Cause Courts Act, 1882, except Chapter VI thereof, and in the rules made under Section 9 of the Act. Section 9 of the Presidency Small Cause Courts Act, 1882, confers power on the High Court to make from time to time rules prescribing the procedure to be followed and the practice to be observed by the Court of Small Causes at Ahmedabad. This High Court has in exercise of the power conferred under Section 9 made the Ahmedabad Small Cause Court Rules which have been brought into force with effect from 4th November, 1961.

Rule 38 of the Ahmedabad Small Cause Court Rules has been thereafter referred, to which I have already made reference at an earlier stage, and it is thereafter observed:

This provision made in Rule 38 is a little different from that made in Order XVIII Rule 5 of the Code of Civil Procedure which says how evidence shall be taken in appealable cases.

As we are not concerned with any such suit, it is not necessary to refer to that part of the judgment of the Division Bench. At page 513, it is observed:

Now it is clear that though Section 9 empowers the High Court to make Rules prescribing the procedure to be followed and the practice to be observed by the Court of Small Causes and the Ahmedabad Small Cause Court Rules made by this High Court in exercise of the power conferred under Section 9 prescribe the procedure to be followed by the Court of Small Causes at Ahmedabad, the Ahmedabad Small Cause Court Rules cannot apply proprio vigore to suits and proceedings cognizable by the Small Cause Court under Section 28 of the Rent Act. The reason is that Section 31 of the Rent Act provides that the Small Cause Court shall follow the procedure prescribed by Rules made by the State Government under Section 49 Sub-section (1) and Sub-section (2) Clause (iii) in trying and hearing suits and proceedings exclusively triable by it under Section 28 of the Rent Act. The Rent Act Rules made by the State Government under Section 49, Sub-section (1) and Sub-section (2), Clause (iii) must, therefore, govern the procedure of the Small Cause Court in respect of suits and proceedings under Section 28 of the Rent Act. It is only if the Rent Act Rules make the procedure prescribed by the Ahmedabad Small Cause Court Rules applicable to any category of suits or proceedings under Section 28 of the Rent Act that such procedure would govern that particular category of suits or proceedings. 'We find that such a provision is made in Rule 5 of the Rent Act Rules. Rule 5 provides that the Small Cause Court shall, while trying and hearing suits and proceedings belonging to any of the categories specified in Clauses (1), (2) and (3) follow the practice and procedure provided in the Presidency Small Cause Courts Act, 1882, except Chapter VI thereof and the Ahmedabad Small cause Court Rules. The procedure prescribed in the Ahmedabad Small Cause Court Rules would, therefore, clearly be applicable in respect of suit and proceedings falling within any one of the three categories described in Clauses (1), (2) and (3) of Rule 5. So also by reason of the mandate of the State Government expressed in Rule 7, the procedure prescribed in the Ahmedabad Small Cause Court Rules would apply in respect of miscellaneous applications such as applications for fixing standard rent.

In my opinion, these observations, which are no doubt, in the nature of obiter dicta looking to the aforesaid rules and the provisions, lay down the correct ratio. In such proceedings, in view of Section 31 of the Bombay Rent Act, Rules 5 and 7 of the Bombay Rent Act Rules, Rule 38 of the Ahmedabad Small Cause Court Rules will govern the procedure in such miscellaneous proceedings.

17. It is, therefore, evident that the trial Court has committed a serious procedural error in deciding the miscellaneous application on affidavits. The decision passed by it, which has been confirmed by the appellate Court, therefore, cannot be sustained in law.

18. Revision petition is allowed and the judgment and decree passed by the trial Court as well as by the appellate Court are set aside and the matter is remanded to the trial Court with a direction to re-take Civil Miscellaneous Application No. 918 of 1964 on its file and give top priority to it and decide it after recording evidence, as contemplated by Rule 38 of the Ahmedabad Small Cause Court Rules, 1961, and decide the case in accordance with law. Taking into consideration the circumstances of the case, each party is ordered to bear its own costs throughout upto date.


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